Although experts are allowed to provide opinion testimony to assist a jury in evaluating the evidence, in doing so they are not allowed to simply ignore or refute uncontradicted testimony in the case.  We recently posted on the New Jersey Supreme Court’s  decision in Townsend v. Pierre that held such an opinion is speculative and not trustworthy. In a case with close parallels to Townsend, the Appellate Division recently adopted whole scale its reasoning to affirm summary judgment in Yankilevich v. Sachakova.

Both cases involved automobile accidents in which a driver pulled from a stopped position onto a roadway causing a collision with a driver who was proceeding with right of way.  In Townsend, the decedent estate claimed shrubbery on a contiguous property obstructed the view of the turning driver.  In Yankilevich, the plaintiff alleged that flags of a gas station were to blame.   In each case, the defendant drivers testified that their viewpoint was not obstructed.  Yet, plaintiffs offered expert testimony to dispute this.

In the more recent case, the seventeen year old defendant driver Sachakova pulled her car to the curb line of the driveway exit of an Exxon station located on Route 18, a commercial area highway common in New Jersey.  She testified that she stopped one to two seconds to observe oncoming traffic on her left. Seeing no cars coming, she pulled into the highway and was immediately struck by plaintiff’s car. Plaintiff’s vehicle struck with such force that it was overturned in the crash. The responding police officer wrote in his report that “there were several flags posted in the ‘right of way’ along the Rt. 18 side of the Exxon gas station property. Although it was not determined, these flags could have impeded a driver’s view when exiting the gas station onto Rt. 18.”

At deposition, Sachakova testified unequivocally that the flags were not an obstruction for her on the date of the accident.  The plaintiff settled with Sachakova and pursued his claim against Exxon Mobil Corporation and its franchisee, defendant Route 18 Mart, Inc.  To this end, he offered an accident reconstruction expert who contradicted Sachakova’s testimony with respect to the flags.

The question presented before the appellate court was whether the  expert could present a contrary opinion as to whether the flags were an obstruction or, at least, distracting, on the date of the accident. However, given the uncontradicted testimony of Sachakova, and in light of the Supreme Court’s Townsend decision, the appellate court found that the plaintiff failed to establish its prima facie burden of proving the flags were a proximate cause of the accident.

Thanks to Steve Kim for his contribution.

For more information, contact Denise Fontana Ricci at .